All Posts

At a recent trial (now on appeal) the district court interrupted my summation and required me to take a lengthy break to cleanse my PowerPoint slides and summation notes of arguments criticizing the government. The court instructed, “Do not impugn the integrity of the government as if they’re trying to pull a fast one.” Was this kosher? The Background What precipitated this prohibition? We were trying a murder case in which the defendant was accused of murdering the victim t

Introduction When a taxpayer steps forward to correct past mistakes through the IRS’s Voluntary Disclosure Program (VDP) , the IRS is supposed to reward that honesty—not punish it. Recently, we successfully intervened when the IRS issued an unnecessary and improper summons to one of our clients after he had already been accepted into the VDP program and was fully cooperating with IRS requests for information. Background: Client Accepted Into the IRS Voluntary Disclosure

I don't shy away from criticizing federal judges and magistrate judges I believe are incompetent, biased, or lazy , but I prefer, particularly in this Season of Thanks, to recognize those that display all-around excellence. One of the categories we include on our website The Robing Room ( www.therobingroom.com ) is "The Top 10 Federal Judges." Here are a few of the many judged the "best of the best" among federal district judges and magistrate judges. Hon. Thelton E. Henderso

On November 19 the BOP published a seven-minute speech by recently appointed BOP Director Josh Smith, summarizing the breathtaking failures of the BOP and pledging the dawn of a new age in the broken federal prison system. Attributing the mess to Biden Emphasizing in one way or another, no less than eight times, the “mess that we've inherited from the Biden administration,” Smith excuses the failures of Trump’s first term as the result of a BOP “plagued by an entrenched d

I occasionally hear from clients — or prospective clients — that they are "sure" the feds are wiretapping them because they hear strange clicks and other stuff when speaking on their phone. Although years ago, in the analog world, there were sometimes telltale signs of wiretapping, nowadays intercepts are digital and you won't hear any clicks or other strange sounds on your phone. Unless, perhaps, you are the type of person that also believes that the feds have planted a rec

Some twenty years ago we founded The Robing Room ( www.therobingroom.com ), which has since become the largest judge-rating website in the country, permitting lawyers and non-lawyers to post reviews of both state and federal judges. We have 36,000 reviews of federal judges and a large multiple of that number for state judges. An ever popular area of The Robing Room is the "Top 10" and "Bottom 10" lists. Check it out! We created and maintain The Robing Room because we believe

During the pandemic many inmates prevailed on compassionate release applications because they were particularly vulnerable to suffering bad outcomes should they contract COVID . With COVID largely -- though certainly not entirely -- in the rear view mirror, what are the principal grounds upon which compassionate release -- which includes reductions of sentence in addition to immediate release -- are granted? Key Factors: Rehabilitation vs. Recidivism My partner Zach Segal and

A colleague, reacting to my recent post about the " Vanishing Reversal Rate in the Second Circuit ," asked me yesterday whether we kept similar stats on the subject of habeas corpus petitions. We don't. But one thing that my partner Zach Segal and I started monitoring a few years ago was the Eastern District of New York's then-abysmal backlog of section 2254 petitions, i.e., habeas petitions brought by state inmates. In substance the EDNY was where § 2254 petitions went to di

It's a rare day when the Second Circuit finds appellate counsel to have been ineffective. After all, the defendant needs to satisfy the Strickland standard, showing that counsel's performance was objectively unreasonable and that there exists a reasonable probability of a different result. Given the paucity of successful criminal appeals , that sets a pretty high bar. But in the recent decision by Judge Nathan (Park dissenting) in Purcell v. United States , 23-6985 (2d Cir. N

You may never have heard of the party presentation rule in appellate practice, but trust me, it's an important one. It states that, except in extraordinary circumstances, a court should decide an appeal based on the issues as framed by the parties . In other words, the court shouldn't independently hunt for issues it believes may be reviewable based on the district court record, unless, say, it's an issue that implicates the court's power to adjudicate, because doing so inevi

In my lectures during the last several years I've discussed the Second Circuit's abysmal record of affirming nearly all trial convictions in criminal cases. In 2024, for example, the court entirely reversed no convictions at all, while affirming 98. In 2023 they reversed 1 and affirmed 67 (although they granted substantial relief in another case, U.S. v. Lauria (Molina), 70 F.4th 106 (2d Cir. 6/9/23)), in which we were appellate counsel). Take a look at this graph and you'll

This week we saw a rare Second Circuit reversal of a conviction after trial. In United States v. Cole , 23-7566 (2d Cir. October 27, 2025), Judge Carney, joined by judges Jacobs and Nardini, reversed on double jeopardy grounds Neil Cole's conviction for security fraud and related charges. Cole had been acquitted at his first trial of a securities fraud conspiracy but the jury was hung on related substantive charges. Cole argued that his retrial on the substantive charges was